Terms and Conditions
Updated: Oct. 4, 2016
American Campus Communities, Inc.
LoftSmart, Inc. (hereafter referred to as “LoftSmart”, “we”, “us”, or “our”) provides an online platform that connects Landlords (as defined below) with Renters (as defined below), and facilitates certain aspects of the rental process, such as posting Listings (as defined below) and the payment of rent via our third party payment processor (collectively, the “Services”), which Services are accessible at http://www.loftsmart.com and any other websites through which LoftSmart makes the Services available (collectively, the “Site”) and our application for mobile devices (the “Application”). In the event you create a listing for the rental of an apartment, home or
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE WEBSITE, APPLICATION OR SERVICES, WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THESE TERMS.
LoftSmart reserves the right, at its sole discretion, to modify the Site, Application or Services or to modify these Terms, at any time and without prior notice. When changes are made to these Terms, we will post a new copy of the Terms on the Site or via the Application, and will also update the “Last Updated Date” at the top of these Terms. If we make any material changes to the Terms, and you have registered with us to create a LoftSmart Account (as defined in Section 4 below) we will also send
1.Rental Listings. Landlords may create Listing for free. When you create a Listing, you will be asked a variety of questions about the rental property to be listed (“Rental”), including, but not limited to, the location, size, features, photos, availability of the Rental and pricing. Listings will be made publicly available via the LoftSmart Properties, as well as on the websites and services of our
You acknowledge and agree that you are responsible for any and all Listings you post. Accordingly, you represent and warrant that any Listing you post (i) will not breach any agreements you have entered into with any third parties and (ii) will (a) be in compliance with all applicable laws, tax requirements, and rules and regulations that may apply to any Rental included in a Listing you post, including, but not limited to, zoning laws and laws governing rentals of residential and other properties and (b) not conflict with the rights of third parties. Please note that LoftSmart assumes no responsibility for a Landlord's compliance with any applicable laws, rules
2.Service as a Venue Only. The Site, Application
LoftSmart does not counsel parties to real estate transactions, assess the qualifications of potential tenants, show properties or negotiate rental or sales agreements. No brokerage relationship or any agency or fiduciary relationship is intended to be or shall be deemed to have been created between LoftSmart and any user. You acknowledge and agree that LoftSmart is a not a party to any rental, lease or other agreement between
3.Property Management System and Content
a.Leases. As part of the Services, Landlords and Renters may electronically execute a lease, sublease or any other agreement with respect to a particular Rental (each, a “Lease”). You are solely responsible for each Lease agreement you Make Available (as defined below) on the LoftSmart Properties, including the legality and enforceability thereof. LoftSmart does not offer or provide any legal advice with respect to any Lease or your Rentals. You hereby grant LoftSmart access to any Lease you Make Available via the LoftSmart Properties for the purpose of providing the Services, including, without limitation, for the purpose of billing.
b.Renter Screening. LoftSmart offers Renters the ability to obtain certain background checks from
c.No Obligation to Pre-Screen Content. You acknowledge that LoftSmart has no obligation to pre-screen Content (including, but not limited to, user Content), although LoftSmart reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of any Content you upload, transmit, distribute, post, email or otherwise make available (“Make Available”) to LoftSmart (“Your Content”), including without limitation chat, text, or voice communications. In the event that LoftSmart pre-screens, refuses or removes any Content, you acknowledge that LoftSmart will do so for LoftSmart’s benefit, not yours. Without limiting the foregoing, LoftSmart shall have the right to remove any Content that violates the Terms or is otherwise objectionable. As used herein, “Content” means text, graphics, images, music, software audio, video, information or other materials accessible through the Site, Application or Services.
d.Storage. Unless expressly agreed to by LoftSmart in writing elsewhere, LoftSmart has no obligation to store any of Your Content that you Make Available on the LoftSmart Properties. LoftSmart has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive
a.Registering for an Account. In order to access certain features of the LoftSmart Properties, you must register to create an account (a “LoftSmart Account”) and become a registered user. You may register to join the Services directly via the Site or Application or as described in this section.
c.Registration Data. You may not have more than one (1) active LoftSmart Account. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. LoftSmart reserves the right to suspend or terminate your LoftSmart Account and your access to the Site, Application and Services if you create more than one (1) LoftSmart Account or if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your LoftSmart Account, whether or not you have authorized such activities or actions. You will immediately notify LoftSmart of any unauthorized use of your LoftSmart Account.
5.Fees and Payment Terms
a.Success Fees. Joining the Service and posting Listings is free. If you and a Renter enter into a Lease, you agree to pay LoftSmart a commission of $100.00 USD (a “Success Fee”). The Success Fee is non-refundable, and LoftSmart will collect its Success Fee as follows:
LoftSmart will invoice American Campus Communities, Inc. once a year on September 1st, Net-30.
b.Payment Terms. In the event the Renter deposits his or her first month’s rent payment and security deposit due by the Renter under the applicable Lease with our third party payment processor (the “1st Payment”), we will automatically collect the Success Fee from the 1st Payment and direct our third party payment processor to remit the remaining amount to you. In the event the Renter does not deposit the 1st Payment with our third party payment processor, you agree to pay the Success Fee to us directly. You must provide LoftSmart with a valid credit or debit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”), or bank account/ACH information as prompted by the Services as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit or debit card, and you must refer to that agreement and not the Terms to determine your rights and liabilities. By providing LoftSmart with your credit or debit card number and associated payment information, you agree that LoftSmart and its third party payment processor is authorized to immediately invoice your LoftSmart Account for all fees and charges due and payable to LoftSmart hereunder and that no additional notice or consent is required. You agree to immediately notify LoftSmart of any change in your zip code or the credit or debit card account used for payment hereunder. LoftSmart reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Services or by e-mail delivery to you. All information that you provide to us or our third party payment processor must be accurate, current and complete. LoftSmart and LoftSmart’s
c.Taxes. LoftSmart’s fees are net of any applicable Sales Tax. If any Services, or payments for any Services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to LoftSmart, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify LoftSmart for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that LoftSmart is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
d.Required Payment via LoftSmart Properties. You acknowledge and agree that LoftSmart has expended tremendous time and effort in developing and maintaining the LoftSmart
e.Free Trials and Other Promotions. Any free trial or other promotion must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable subscription fee. If you are inadvertently charged for a subscription, please contact LoftSmart to have the charges reversed.
8.User Conduct. You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and tax obligations that may apply to your use of the LoftSmart Properties. In connection with your use of the LoftSmart Properties, you may not and you agree that you will not:
a.violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, zoning restrictions
b.use manual or automated software, devices, scripts robots, other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the LoftSmart Properties;
c.copy, store or otherwise access any information contained on the LoftSmart Properties for purposes not expressly permitted by these Terms;
d.interfere with or damage our LoftSmart Properties, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
e.use our LoftSmart Properties to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
f.use our LoftSmart Properties in connection with the distribution of unsolicited commercial email (“spam”) or advertisements unrelated to rentals in a private residence;
g.“stalk” or harass any other user of our LoftSmart Properties or collect or store any personally identifiable information about any other user other than for purposes of transacting as a LoftSmart Renter or Landlord;
h.offer, as a Landlord, any Rental that you do not yourself own or have permission to rent as a residential or other property or that may not be rented or subleased in breach of any agreement with a third party to which you are bound;
i.contact, any other user of the LoftSmart Properties for any purpose other than asking and answering question(s) related to Listings and Rentals;
j.recruit or otherwise solicit any user of the LoftSmart Properties to join third party services or websites that are competitive to LoftSmart, without LoftSmart's prior written approval;
k.impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity;
l.use automated scripts to collect information or otherwise interact with the LoftSmart Properties;
m.as a Landlord, submit any Listing with false or misleading price information, or submit any Listing with a price that you do not intend to honor;
n.Make Available any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances;
o.use, display, mirror or frame the Site or Application, or any individual element within the LoftSmart Properties, LoftSmart's name, any LoftSmart trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without LoftSmart's express written consent;
p.avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by LoftSmart or any of LoftSmart's providers or any other third party (including another user) to protect the LoftSmart Properties;
q.attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the LoftSmart Properties; or
r.advocate, encourage, or assist any third party in doing any of the foregoing.
9.Investigations. LoftSmart will have the right to investigate and prosecute violations of these Terms to the fullest extent of the law. LoftSmart may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that LoftSmart has no obligation to monitor your access to or use of the LoftSmart Properties or to review or edit any
10.Interactions with Other Users
a.User Responsibility. You are solely responsible for your interactions with other users of the Services and any other parties with whom you interact through the Services; provided, however, that LoftSmart reserves the right, but has no obligation, to intercede in such disputes. You agree that LoftSmart will not be responsible for any liability incurred as the result of such interactions.
b.Content Provided by Other Users. The LoftSmart Properties may contain Content provided by other users. LoftSmart is not responsible for and does not control such Content. LoftSmart has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to Content provided by other users. Your use all Content and interaction with other users at your own risk.
11.Ownership and Licenses
a.Ownership. The LoftSmart Properties are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the LoftSmart Properties, including all associated intellectual property rights are the exclusive property of LoftSmart and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the LoftSmart Properties.
b.Application License. Subject to your compliance with these Terms, LoftSmart grants you a limited non-exclusive, non-transferable license to download and install a copy of the Application on a mobile device or computer that you own or control and run such copy of the Application solely for your own personal use. Furthermore, with respect to any App Store Sourced Application (defined below), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple Inc.’s proprietary operating system), or (ii) on devices that run the Android (Google Inc.’s proprietary operating system). Furthermore, with respect to any App Store Sourced Application accessed through or downloaded from the Apple App Store, Google Chrome Web Store, Google Play marketplace or any similar store or marketplace (each, an “App Store” and references to an App Store include the corporate entity and its subsidiaries making such App Store available to you), you agree to comply with all applicable third party terms of the relevant App Store (e.g., Apple App Store’s “Usage Rules”) (the “Usage Rules”) when using the App Store Sourced Application. LoftSmart reserves all rights in the Application not expressly granted to you by these Terms.
c.Your Content. LoftSmart does not claim ownership of Your Content. However, when you post or publish Your Content on the LoftSmart Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or incorporate it in other words in any form, media, or technology now known or later developed. You hereby grant to LoftSmart a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense through multiple tiers of sublicenses, to use, copy, modify, distribute, publicly display, publicly perform, digitally transmit, and otherwise exploit such Your Content on, through, or by means of the LoftSmart Properties
d.Proprietary Rights Notices. All trademarks, service marks, logos, trade names and any other proprietary designations of LoftSmart used herein are trademarks or registered trademarks of LoftSmart. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
e.Updates. You understand that the LoftSmart Properties are evolving. As a result, LoftSmart may require you to accept updates to the LoftSmart Properties that you have installed on your computer or mobile device. You acknowledge and agree that LoftSmart may update the LoftSmart Properties with or without notifying you. You may need to update third-party software from time to time in order to use the LoftSmart Properties.
f.Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to LoftSmart through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that LoftSmart has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to LoftSmart a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the LoftSmart Properties.
12.Copyright Policy. LoftSmart respects copyright law and expects its users to do the same. It is LoftSmart's policy to terminate in appropriate circumstances the LoftSmart Accounts of users or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. As such, LoftSmart adheres to the following notice and take down policy, in full compliance with Section 512(c)(3) of the DMCA (17 U.S.C. § 512 et seq.). If you believe any user Content infringes upon your intellectual property rights, please submit a notification alleging such infringement (hereafter a “DMCA Takedown Notice”). To be valid, a DMCA Takedown Notice must (i) be provided to LoftSmart’s designated agent (“Copyright Agent”), as set forth below, and (ii) include the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to be infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works;
- Identification of the material claimed to be infringed or to be the subject of infringing activity and that is to be removed or access disabled and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that, under penalty of perjury, the information in the notification is accurate and that you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
LoftSmart’s Copyright Agent to receive DMCA Takedown Notices
13.Termination and LoftSmart Account Cancellation. We may, in our discretion and without liability to you, with or without cause, with or without prior notice and at any time: (a) terminate these Terms or your access to our LoftSmart Services, and (b) deactivate or cancel your LoftSmart Account. You may cancel your LoftSmart Account at any time by sending an email to email@example.com that includes your full name and account sign up
14.Indemnification. You agree to release, defend, indemnify, and hold LoftSmart and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of the LoftSmart Properties or your violation of these Terms; (b) Your Content; (c) your interaction with any user of the Services; or (d) your Listing(s) and Rental(s). This provision does not require you to indemnify LoftSmart for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Site, Application or any Services provided hereunder.
a.As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE
b.No Advice. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM
c.Interactions with Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE
16.Limitation of Liability.
a.Disclaimer of Certain Damages. NEITHER LOFTSMART NOR ANY OF ITS SUPPLIERS WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE LOFTSMART PROPERTIES, INCLUDING LOST PROFITS, LOSS OF DATA OR ANY DAMAGES OR COSTS DUE TO LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS (EXCLUDING LOFTSMART’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT), FROM THE USE OF OR INABILITY TO USE THE LOFTSMART PROPERTIES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE LOFTSMART PROPERTIES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE LOFTSMART PROPERTIES FROM YOUR LISTING OF ANY RENTAL VIA THE LOFTSMART PROPERTIES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, WHETHER OR NOT LOFTSMART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. NOTWITHSTANDING THE FOREGOING,
b.Cap on Liability. IN NO EVENT WILL LOFTSMART'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE LOFTSMART PROPERTIES , EXCEED: (A) THE AMOUNTS PAID BY LOFTSMART TO YOU IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT(S) GIVING RISE TO THE LIABILITY; OR (B) IN THE EVENT YOU HAVE NOT PAID LOFTSMART AND LOFTSMART HAS NOT PAID YOU, ANY AMOUNTS DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT(S) GIVING RISE TO LIABILITY, ONE HUNDRED DOLLARS ($100). NOTWITHSTANDING THE FOREGOING,
17.App Stores. You acknowledge and agree that the availability of the Application is dependent on the third party from which you received the App license, e.g., the Apple iPhone, Android, Windows phone app stores (“App Store”). You acknowledge that the Terms are between you and LoftSmart and not with the App Store. LoftSmart, not the App Store, is solely responsible for the LoftSmart Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the LoftSmart Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the LoftSmart Properties, including the App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
a. Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between LoftSmart and you regarding the LoftSmart Properties, and these Terms supersede and replace any and all prior oral or written understandings or agreements between the parties with respect to such subject matter.
b. Assignment. You may not assign or transfer these Terms, by operation of law or otherwise, without LoftSmart's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. LoftSmart may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
c. Notices.Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by LoftSmart (i) via email (in each case to the address that you provide) or (ii) by posting to the Site or via the Application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. You may give notice to LoftSmart at the following address: firstname.lastname@example.org.
d. Electronic Communications. The communications between you and the LoftSmart use electronic means, whether you visit the LoftSmart Properties or send the LoftSmart e-mails, or whether the LoftSmart posts notices on the LoftSmart Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from LoftSmart in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that LoftSmart provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
e. Controlling Law and Jurisdiction. These Terms will be interpreted in accordance with the laws of the State of New York and the United States of America, without regard to its conflict-of-law provisions except where federal law including the Federal Arbitration Act apply. In any circumstances where the Arbitration Agreement stated in the next section permits the parties to litigate in court, you and we agree to submit to the personal jurisdiction of a state and federal courts located in New York, New York.
f. Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this Arbitration Agreement carefully. It is part of your contract with LoftSmart and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
i.Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use or operation of any product or service provided by LoftSmart that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and LoftSmart, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
ii.Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to LoftSmart should be sent to: 524 Broadway, New York, New York, 10013. After the Notice is received, you and LoftSmart may attempt to resolve the claim or dispute informally. If you and LoftSmart do not resolve the claim or dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
iii.Arbitration Rules. To begin an arbitration proceeding, you must send a letter requesting arbitration and describe your claim to 524 Broadway, New York, New York, 10013. Arbitration shall be initiated through JAMS, an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If JAMS is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00 ) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If you initiate an arbitration in which you seek less than $500 in damages and comply with the Terms, including the Notice Requirement, LoftSmart shall reimburse you for your JAMS filing fee, and shall pay all administration and arbitrator fees up to a total amount of $500.
iv.Additional Rules for Non-appearance Based Arbitration: If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
v.Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and LoftSmart, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the JAMS Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and LoftSmart.
vi.Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and LoftSmart in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND LOFTSMART WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
vii.Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR REPRESENTATIVE BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, then notwithstanding anything to the contrary in this Arbitration Agreement or Terms, neither you or LoftSmart is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 18 (e).
viii.Severability. Subject to section 18(f)(vii), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
ix.Right to Waive. Any or all of the rights and limitations set forth in this Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Agreement.
x.Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with LoftSmart.
xi.Small Claims Court. Notwithstanding the foregoing, either you or LoftSmart may bring an individual action in small claims court so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis.
xii.Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
xiii.Courts. In any circumstances where the foregoing Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within New York, New York, for such purpose.
g. Waiver; Severability. The failure of LoftSmart to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of LoftSmart. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
h. Contacting LoftSmart.If you have any questions about these Terms or any App Store Sourced Application, please contact LoftSmart at email@example.com.
i. Export Control. You may not use, export, import, or transfer the LoftSmart Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the LoftSmart Properties, and any other applicable laws. In particular, but without limitation, the LoftSmart Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the LoftSmart Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You acknowledge and agree that products, services or technology provided by LoftSmart are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer LoftSmart products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
j. Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
k. Force Majeure. LoftSmart shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
The following Listings (properties) will be listed on LoftSmart and subject to collect a commission where you and a Renter enter into a Lease:
1) 2125 Franklin (University of Oregon)
2) The 515 (University of Oregon)
3) Icon Plaza (University of Southern California)
4) West 27th Place (University of Southern California)
5) Stadium Centre (Florida State University)
6) 601 Copeland (Florida State University)
7) U Club on Woodward (Florida State University)
8) University Village (Florida State University)
9) Willowtree Apartments and Tower (University of Michigan)
10) Aggie Station (Texas A&M;)
11) The Callaway House (Texas A&M;)
12) Callaway Villas (Texas A&M;)
13) U Club Townhomes on Marion Pugh (Texas A&M;)
14) U Centre at Northgate (Texas A&M;)
15) Chauncey Square (Purdue)
16) 26 West (The University of Texas Austin)
17) The Block (The University of Texas Austin)
18) Crest at Pearl (The University of Texas Austin)
19) Vintage and Texan West Campus (The University of Texas Austin)
20) The Callaway House Austin (The University of Texas Austin)
21) The Castilian (The University of Texas Austin)